State ex rel. Mau v. Ausherman

• Decision Date: 20 August 1903
• Parties: STATE EX REL. MAU v. AUSHERMAN, DISTRICT COURT COMMISSIONER, ET AL
• Court: Wyoming Supreme Court

72 P. 200

11 Wyo. 410

STATE EX REL. MAU v. AUSHERMAN, DISTRICT COURT COMMISSIONER, ET AL

Supreme Court of Wyoming

August 20, 1903

11 Wyo. 410 at 438.

Original Opinion of April 20, 1903, Reported at: 11 Wyo. 410.

Rehearing denied.

J. H Ryckman, for relator.

On petition for rehearing: A citizen of Wyoming cannot be divested of his property, except by verdict of a jury, under due process of law, in a proceeding in which he is in some manner a party, having opportunity to be heard and having a day in court. (First Nat. Bank v. Foster, 61 P. 466; Salt Creek Valley Turnpike Co. v. Parks, 50 O. St 568; 28 L. R. A., 773.) Ditches and water rights are in the nature of realty, and the trial of such property rights must conform to the common law in respect to trial by jury. (Ins. Co. v. U.S. 73 U.S. 759; Morris v U.S. 75 U.S. 507.) Joint ownership in a ditch and the extent of the several interests of such owners and of the right to use the water therein are questions of fact involving the most valuable property rights and the right of trial by jury in such cases is secured by the constitution as the right existed at common law. (Edwards v. Elliott, 36 N. J. L., 449; Emerick v. Harris, 1 Binn., 424; Re Penna. Hall, 5 Pa. 204; Livingston v. Moore, 7 Pet., 552; 8 L., 781; Grim v. Norris, 19 Cal. 140; Koppicus v. State Capitol, 16 Cal. 248.)

The court commissioner found that there was a joint ownership in the ditch, and, therefore, he had jurisdiction, and this court holds such finding conclusive, but he determined his jurisdiction without going into the case on its merits--without touching the gist of the action which this court has said was "the existence of a temporary necessity for the distribution of water." His jurisdiction, therefore, depended on the collateral fact of joint ownership in the ditch, without going into the merits, and the jurisdiction may be questioned collaterally by petition for a writ of prohibition and may be disproved. (17 Ency. L. (2d Ed.), 1084; Cooley Const. Lim. (3d Ed.), 407, and cases cited; Bank v. Wilcox, 15 R. I., 258; Anderson v. Commissioners, 12 O. St., 635, 644; Andrews v. Andrews, U. S. Sup. Court, Feb. 16, 1903.)

In the case of Mau v. Stoner the plaintiff alleged that he had constructed the ditch in question under the laws of Wyoming and appropriated the water of Smith's Fork and applied it to his land each year since 1894. The defendant denied plaintiff had a ditch or water right at all, but pleaded no interest of his own in the ditch or water. The vast preponderance of the evidence was on plaintiff's side, and if the ditch and water were found by the jury to be Mau's, how could Stoner have any interest in either? In the case of Mau v. Forgeon, the plaintiff made substantially the same allegations as to the construction and ownership of the ditch and the continuous use of the water. Forgeon answered denying these allegations but set up no claim either to the ditch or the water. The jury found generally for the plaintiff upon all the issues in both cases. Hence, the jury found that all the allegations of the plaintiff's petitions were true and all the allegations of the answers were false. If a general verdict means anything, these verdicts mean that the ditch is Mau's and not Stoner's nor Forgeon's, and an inspection of the testimony shows a tremendous preponderance in favor of the plaintiff's contention that the ditch has never carried any more water than Mau is entitled to, to-wit, five cubic feet per second, equal to the irrigation of 320 acres.

The court emphasizes that portion of the judgments which restrains the defendant from further aggressions against the plaintiff, but overlooks apparently that portion which adopts the verdicts of the jury. The injunctive portions of the judgment are wholly immaterial. The question is, what did the jury find? The injunction is a mere incident to the judgment. It might well have been dispensed with in this case. Suppose there was no injunction, but simply judgment on the verdict. What, then, would be the plaintiff's situation? Looking to the issues in the two cases and the verdicts, he would stand the undisputed owner of the ditch and all the water therein, and if such owner, who could be a joint owner with him, and if there is no joint ownership, the court commissioner's finding that there was joint ownership, when there was none, fails to confer jurisdiction, and all his orders are void.

It will not be denied that if Judge Craig had been on the bench at Evanston when the suit was brought for the appointment of a distributer, he would have been disqualified by the filing of the statutory affidavit as to bias and prejudice and would have transferred the cause. While the Legislature may have failed to provide for a change of court commissioner in such a case, can it be that a judge can sit in his own cause, or that of his client, or when he is biased and prejudiced? It belongs to the power which created such a court to provide another to which the case may be transferred; and, whether such another is established or not, the disqualified judge is not entrusted with authority to determine his own rights or wrongs (or those of his client.) (Cooley Const. Lim. (3d Ed.), 410-412, citing Wash. Ins. Co. v. Price, Hopk., Ch. 2; Hall v. Thayer, 105 Mass. 221; People v. Gies, 25 Mich. 83; R. Co. v. Howard, 20 Mich. 26.)

If an attorney sits in a case where he has been of counsel, the judgment is void. (Reams v. Kearns, 5 Cold., 217; Tootle v. Berkely, 56 P. 755.)

If the court by its own intuition or recollection discovers disqualification, it does not wait for the disqualification to be suggested by counsel, but withdraws from the bench. (Oakley v. Aspinwall, 3 Comst. N. Y., 547; Ins. Co v. Price, 1 Hopkins, Ch. 1; Freeman on Judgments, Sec. 145; Barrett v. Gaines, 6 Tex., 435; Cooley's Const. Lim. (4th...